File: NeuselPaginated.docx
Created on: 5/27/13 10:48 PM
Last Printed: 10/21/13 10:39 PM
NOTE
Community Standards v. Teacher Rights:
What is “Immoral Conduct” Under
Missouri’s Teacher Tenure Act?
Homa v. Carthage R-IX School District, 345 S.W.3d 266 (Mo. App.
S.D. 2011).
CONOR NEUSEL*
I. INTRODUCTION
Most people would agree that a school board has a substantial interest in
guarding the school community from anything that would distract it from
accomplishing its purpose of educating each child enrolled in its schools. Of
course, a very plausible source of distraction would be a misbehaving teacher.
But how inappropriately must a teacher behave in order for the school board
to take action? And when may a school board terminate a teacher for his or
her inappropriate behavior?
Across the country, almost every state legislature has enacted a statute
that allows school boards to terminate a tenured public school teacher’s contract for reasons related to his or her character.1 In Missouri, a tenured
teacher may be fired for engaging in “immoral conduct.”2 However, the Missouri legislature has not defined what type of behavior this phrase encompasses. Consequently, the ambiguous statutory language presents teachers,
school boards, and courts with an obvious dilemma: what conduct constitutes
immoral conduct? In any state, dismissing a teacher on the basis of “immorality” can present some difficulty, not only because “immorality” is difficult
to define, but because “immoral” conduct can occur anywhere, not only
* B.S., Georgetown University 2009; J.D. Candidate, University of Missouri
School of Law 2013; Note and Comment Editor 2012-2013, Associate Member 20112012, Missouri Law Review. I thank Professor Philip Peters for his helpful comments
during the drafting process. Also, I thank Joseph Blumberg and all the other members
of the Missouri Law Review who sacrificed their time to edit this Note.
1
See CONN. GEN. STAT. § 10-151(d)(3) (West, Westlaw through May 14, 2012); GA.
CODE ANN. § 20-2-940(a)(4) (West, Westlaw through May 1, 2012); 105 ILL. COMP.
STAT. 5/10-22.4 (West, Westlaw through P.A. 97-692, with the exception of P.A. 97688 and P.A. 97-689, of the 2012 Reg. Sess.); W. VA. CODE § 18A-2-8 (West, Westlaw through 2012 First Extraordinary Session).
2. MO. REV. STAT. § 168.114(1)(2) (2000).
File: NeuselPaginated.docx
856
Created on: 5/27/13 10:48 PM
MISSOURI LAW REVIEW
Last Printed: 10/21/13 10:39 PM
[Vol. 77
within the schoolhouse gate.3 As written, “moral” teacher statutes have the
potential to greatly limit a teacher’s activity, including activity in his or her
private life.4 However, when drafting statutes, lawmakers must consider interests other than those of the teachers. School boards and the communities
they represent have an interest in overseeing their public employees, who
have such a huge influence on their children.5 Thus, courts must strike a balance between these contrasting interests when defining the phrase “immoral
conduct.”
In a recent Missouri case, Homa v. Carthage R-IX School District, the
Court of Appeals for the Southern District upheld the Carthage School District’s decision to terminate one of its program directors for engaging in “immoral conduct.”6 The Carthage school board terminated Lynda Homa, a
teacher, and the director of its Parents-as-Teachers program, after it found
that Homa authorized a parent-educator to visit an incarcerated program participant to convince the participant to put her child up for adoption.7 Interestingly, the court did not base its determination solely on the inappropriate
adoption discussion. In its opinion, the court put greater emphasis on Homa’s
deceit and dishonesty in covering up the incident.8
Of course, reasonable people might disagree about whether this behavior
was so “immoral” that it merited Homa’s termination. Whether the Homa
court reached the correct result depends upon how one defines immoral conduct. Therein lies the real issue: Missouri’s appellate courts have not definitively agreed upon what “immoral conduct” means, and the Supreme Court of
Missouri has yet to define the phrase.9 In Homa, the three-judge panel for the
3. Jason R. Fulmer, Dismissing the “Immoral” Teacher for Conduct Outside
the Workplace – Do Current Laws Protect the Interests of Both School Authorities
and Teachers?, 31 J.L. & EDUC. 271, 278 (2002).
4. Marka B. Fleming, Amanda Harmon Cooley & Gwendolyn McFaddenWade, Morals Clauses for Educators in Secondary and Postsecondary Schools: Legal
Applications and Constitutional Concerns, 2009 BYU EDUC. & L.J. 67, 102 (2009).
5. See Adler v. Bd. of Educ., 342 U.S. 485, 493 (1952) (“A teacher works in a
sensitive area in a schoolroom. There he shapes the attitude of young minds towards
the society in which they live. In this, the state has a vital concern. It must preserve
the integrity of the schools. That the school authorities have the right and the duty to
screen the officials, teacher, and employees as to their fitness to maintain the integrity
of the schools as part of ordered society, cannot be doubted.”).
6. Homa v. Carthage R-IX Sch. Dist., 345 S.W.3d 266, 279 (Mo. App. S.D.
2011), transfer denied.
7. Id. at 274-75.
8. See id. at 277.
9. Compare Ross v. Robb, 662 S.W.2d 257, 259 (Mo. 1983) (en banc) (declining to define “immoral conduct”), with Homa, 345 S.W.3d at 276 (contemplating
immoral conduct to mean behavior “sufficiently contrary to justice, honesty, modesty
or good morals . . . to support the inference that the teacher consciously comprehended the wrongful nature of the conduct.” (quoting Youngman v. Doerhoff, 890
S.W.2d 330, 341 (Mo. App. E.D. 1994))) and Kimble v. Worth City R-III Bd. of
File: NeuselPaginated.docx
2012]
Created on: 5/27/13 10:48 PM
TEACHER TENURE ACT
Last Printed: 10/21/13 10:39 PM
857
Southern District adopted the definition of “immoral conduct” previously
applied by the Eastern District, which focuses on a teacher’s intent.10 This
Note argues that Homa was correctly decided, and that by incorporating a
mens rea into the definitional understanding of “immoral conduct,” the
Southern District has provided teachers, school boards, and lower courts in
Missouri with a better understanding of what sort of behavior is “immoral”
under the statute.
II. FACTS & HOLDING
Carthage R-IX School District (District) is a Missouri public school district.11 Employed as a tenured teacher in the District, Homa was the director
of the Parents as Teachers (PAT) program for twenty years.12 Her main responsibility as the director was to supervise PAT employees.13
PAT is a free, voluntary education program offered by the District to
parents with children that have not yet started kindergarten.14 Some of the
program’s goals are to “increase parent confidence, give parents an understanding of their child’s developmental progress, and to provide children with
early developmental screening.”15
PAT employees, called “parenteducators,” have various responsibilities, including making personal visits,
conducting group meetings, offering resources, and providing developmental
screening for children.16
The Missouri Department of Elementary and Secondary Education
(DESE) funds the PAT program.17 According to DESE guidelines, each
school district must maintain records of program activities.18 DESE’s Early
Childhood Development Act19 Program Guidelines and Administrative Manual (ECDA guidelines)20 states, “[P]arent educators must keep educational
records of each personal visit and group meeting. Records must include . . .
the content of the visit [and] outline issues raised by the parent. . . . Only visits that have a completed personal visit record will be counted for reimburseEduc., 669 S.W.2d 949, 953 (Mo. App. W.D. 1984) (noting that conduct that rendered
the teacher “unfit to teach” met the test for immoral conduct).
10. Homa, 345 S.W.3d at 276-78.
11. Id. at 269. As such, it is a political subdivision of the State of Missouri. Id.
12. Id. at 269-70.
13. Id. at 270.
14. Id.
15. Id.
16. Id.
17. Id.
18. Id.
19. MO. REV. STAT. §§ 178.691-.699 (2000).
20. MO. DEP’T OF ELEMENTARY & SECONDARY EDUC., EARLY CHILDHOOD
DEVELOPMENT ACT PROGRAM GUIDELINES AND ADMINISTRATIVE MANUAL (2010),
available at http://dese.mo.gov/eel/el/pat/documents/ECDAProgramGuidelines.pdf.
File: NeuselPaginated.docx
858
Created on: 5/27/13 10:48 PM
MISSOURI LAW REVIEW
Last Printed: 10/21/13 10:39 PM
[Vol. 77
ment.”21 Furthermore, ECDA guidelines maintain that the goal of PAT educators in making personal visits is for “the child to be present during the personal visit. There may be instances where this is not possible. . . . These special instances must be approved by DESE.”22 Also, parent-educators “‘are
not expected to serve in the role of a counselor or social work[er].’”23
In September 2007, PAT parent-educator Laura Davenport asked Homa
if she could visit Encarnacion Bail at the St. Clair County Jail in Osceola,
Missouri.24 Bail, an undocumented immigrant from Guatemala and former
participant in the District’s PAT program, was awaiting deportation.25 Homa
approved Davenport’s visit to the jail.26 Homa knew Bail’s child would not
be present during the visit;27 however, she failed to notify her supervisor or
DESE of Davenport’s visit.28
After Davenport’s trip to the jail, Davenport informed Homa that she
had a discussion with Bail about putting Bail’s son up for adoption.29 Homa
did not have Davenport complete a personal visit record for her trip to visit
Bail,30 yet authorized payment of Davenport’s full salary for that day, even
though DESE would not reimburse the money expended for the visit because
no personal visit record was completed.31 On September 19, 2007, Davenport
referred to her visit with Bail in her “Daily Visit Record,” when she wrote “I
went to jail today, I did not pass go – I did not collect $200.”32
In October 2008, Davenport received a subpoena to testify in an adoption hearing regarding Bail’s son.33 Homa knew Davenport was subpoenaed
in October; however, she did not notify the District’s superintendent, Dr.
Blaine Henningsen, that there was a potential situation developing with Bail
21. Id. at 18 (emphasis omitted).
22. Id. at 13.
23. Homa, 345 S.W.3d at 270 (alteration in original) (quoting PARENTS AS
TEACHERS, SUPERVISOR’S MANUAL AND PROGRAM ADMINISTRATION GUIDE, BORN TO
LEARN COMPONENTS: ETHICAL CONSIDERATIONS FOR PARENT EDUCATORS 259-69
(2005)). The court further noted that when dealing with clients, “[i]t is important for
the ‘parent educator’ to be clear about appropriate professional and personal boundaries[.]” Id.
24. Id.
25. Id.
26. Id. at 271. Homa also told Davenport she would reimburse her for one-half
of the mileage for her trip. Id.
27. Id. At the time of Davenport’s visit, Bail’s eleven-month-old son was staying with family members in Carthage. Id. at 270-71.
28. Id. at 271.
29. Id.
30. Id.
31. Id.
32. Id.
33. Id.
File: NeuselPaginated.docx
2012]
Created on: 5/27/13 10:48 PM
TEACHER TENURE ACT
Last Printed: 10/21/13 10:39 PM
859
until early March 2009.34 Upon learning of the adoption hearing, Henningsen
asked Davenport to meet with him on April 15, 2009, and requested that she
bring Bail’s case file with her.35 During the meeting, Davenport told Henningsen that she went to the jail “to get [Bail] to put [her son] up for adoption.”36 Henningsen then asked Homa and Davenport to each “write down in
chronological order everything that they remembered about the circumstances
surrounding the situation.”37 In their respective written statements, which
were submitted to Henningsen several days later, Homa and Davenport each
individually stated that the primary purpose for Davenport’s trip to the jail
was to take a birth certificate application form to Bail.38
On April 21, 2009, the District put Homa on administrative leave until
an investigation into allegations of improper behavior by Davenport were
completed.39 On June 16, 2009, Homa was charged with engaging in “immoral conduct” relating to her participation in the adoption of Bail’s child. 40
On August 13, 2009, the school board convened for a hearing to consider the
charges against Homa.41 At the hearing, Homa, Davenport, and Henningsen
testified.
A. Homa’s Testimony
At the school board hearing, Homa testified that Davenport asked for
permission to visit Bail so she could deliver a birth certificate application.42
Homa never suggested that Davenport mail the application and admitted that
it “possibly” would have been sensible to mail the application instead of visiting Bail in person while using District funds.43 Homa also admitted that she
knew the jail was outside of the District’s county.44
Homa was aware of the DESE and ECDA guidelines with regard to
PAT personal visits. She knew the goal was to have the child present45 and
also knew that in order for a visit to be considered “personal,” the parent34. Id.
35. Id.
36. Id. Although uninvited, Homa went to the meeting and stayed until its con-
clusion. Id.
37. Id.
38. Id. Homa and Davenport admitted to having spoken to each other prior to
writing their respective statements. Id.
39. Id.
40. Id. On June 16, 2009, Henningsen issued Homa a “Statement of Charges,”
pursuant to MO. REV. STAT. § 168.118 (2000). Id.
41. Id. at 272.
42. Id.
43. Id.
44. Id.
45. Id. Homa also admitted that she did not notify her supervisor or call DESE
to get approval before Davenport went to the jail. Id.
File: NeuselPaginated.docx
860
Created on: 5/27/13 10:48 PM
MISSOURI LAW REVIEW
Last Printed: 10/21/13 10:39 PM
[Vol. 77
educator had to bring developmental materials on the visit.46 Moreover,
Homa acknowledged that she made a “mistake” in sending Davenport without developmental information.47 Homa claimed that she did not think Davenport’s trip to the jail was a “personal visit,”48 and instead considered the
visit to be “family support,” which required no recording.49 Homa admitted
that it was also a “mistake” not to have Davenport report the visit and that
about $181.00 of District funds were spent on Davenport’s trip.50
When asked about the nature of the trip, Homa stated that she was not
“shocked” that Davenport spoke with Bail about adoption.51 She thought it
would be fine for parent-educators to talk to clients about adoption.52 In regards to Davenport’s daily record entry from her jail visit, Homa thought the
comment about not collecting $200 was “rather clever.”53 However, Homa
also acknowledged that someone in Bail’s position might be vulnerable.54
Furthermore, she admitted she did not inform anyone about the nature of
Davenport’s discussion with Bail during the March 12, 2009 meeting, the
April 15, 2009 meeting, or in her own written statement.55
B. Henningsen’s Testimony
At the school board hearing, superintendant Henningsen testified that
when he first asked Davenport why she went to the jail to visit Bail, Davenport immediately stated, “[T]o get [Bail] to put [her son] up for adoption.”56
Henningsen testified that when Davenport responded in this way, Homa did
not correct or react to the statement.57 Homa’s lack of response indicated to
Henningsen that Homa knew Davenport’s true purpose for visiting the jail –
to discuss adoption.58 “Henningsen also testified Davenport said that ‘this
was the worst case of neglect that she had ever seen.’”59
Henningsen confirmed that Davenport changed her reason for going to
the jail once she was asked to put it in writing a few days after their initial
Id.
Id.
Id.
Id. at 272-73.
Id. at 273. Homa said it was her decision to reimburse Davenport for her
mileage for the trip to the jail. Id.
51. Id.
52. Id.
53. Id.
54. Id.
55. Id. Homa admitted that she was “a mandatory reporter of suspected child
abuse and neglect under Missouri law.” Id.
56. Id.
57. Id.
58. Id.
59. Id.
46.
47.
48.
49.
50.
File: NeuselPaginated.docx
2012]
Created on: 5/27/13 10:48 PM
Last Printed: 10/21/13 10:39 PM
TEACHER TENURE ACT
861
meeting.60 Henningsen stated that it was not until after a couple of meetings
that Davenport and Homa “remembered” and indicated the original purpose
for going to the jail was to try to get Bail to sign birth certificate papers for
her son.61
C. Davenport’s Testimony
While testifying in front of the school board, Davenport stated that her
purpose for going to the jail was to take a birth certificate application to Bail
and that she had asked Homa for permission to go for that reason.62 When
asked whether she discussed adoption with Bail, Davenport said, “I mentioned adoption to her or the possibility of adoption to her.”63
Davenport admitted that her written statement explaining her reason for
going to the jail was not the same as what she told Henningsen in their meeting.64 “Davenport testified [that once] Henningsen requested written statements, she and [Homa] ‘realized practically simultaneously . . . that we had –
I had gone because of the – the papers for the application for the birth certificate.’”65
D. Post School Board Hearing Procedural History
On September 10, 2009, Homa filed a petition in the Circuit Court of
Jasper County to review the school board’s decision to fire her for “immoral
conduct”.66 After another hearing, the trial court affirmed the school board’s
decision.67 Homa then filed an appeal with the Court of Appeals for the
Southern District.68 On appeal, Homa alleged that the school board erred in
terminating her employment for “immoral conduct” because the decision was
not supported by competent and substantial evidence, and her conduct did not
60. Id.
61. Id. Henningsen believed the accuracy of the charges against Homa because
Davenport did not get fully reimbursed for the visit, yet claimed this was a legitimate
visit to a parent. Id. According to Henningsen, “‘family support’ means refer and
recommend services, not what we [did] here.” Id.
62. Id. at 273-74. Davenport wanted to do this because the child could not receive immunizations and Women, Infants and Children (WIC) benefits. Id. at 274.
63. Id. Davenport said, “It was just presented lightly as a: ‘Well, you know, you
don’t know how long you’re going to be in here in jail. You have – you don’t know
what your future holds. Have you ever thought about the selfless act of adoption?’”
Id.
64. Id.
65. Id.
66. Id. at 275.
67. Id.
68. Id.
File: NeuselPaginated.docx
862
Created on: 5/27/13 10:48 PM
MISSOURI LAW REVIEW
Last Printed: 10/21/13 10:39 PM
[Vol. 77
constitute immoral conduct as a matter of law.69 In opposition, the District
argued that Homa’s conduct was immoral as a matter of law, and that the
school board’s determination was supported by sufficient and competent evidence.70 The Southern District agreed with the District, holding that a tenured teacher engages in immoral conduct when he or she authorizes a district
employee to visit a program participant for an improper purpose, uses school
funds to support the visit, and intentionally attempts to conceal the nature of
the visit.71
III. LEGAL BACKGROUND
This section will begin with a discussion about Missouri’s Teacher Tenure Act as it relates to the instant decision. Next, this section will discuss the
various approaches courts across Missouri have taken when defining the
phrase “immoral conduct” under Missouri’s Teacher Tenure Act. Finally,
this section will conclude with a short discussion of how other states have
interpreted similar statutory language in teacher termination cases.
A. Missouri’s Teacher Tenure Act
In 1970, the Missouri state legislature enacted Missouri Revised Statutes
sections 168.102 to 168.130, also known as the “Teacher Tenure Act.”72 The
purpose of the Teacher Tenure Act is “to provide substantive and procedural
safeguards with respect to tenured teachers.”73 According to the statutes, a
teacher becomes tenured once he or she has been employed as a teacher for
five successive years in the same school district and then remains employed
in the same school district.74 Once a teacher is tenured, he or she is considered a “permanent teacher,” and is employed pursuant to an indefinite con69. Id. The court was also faced with several other issues, such as (1) “did substantial and competent evidence support the Board’s decision, notwithstanding the
transcript?” and (2) “did the admission of the transcript constitute reversible error?”
Id. Those issues will not be discussed in this Note. The court eventually addressed
these issues in its opinion and determined that the transcript was inadmissible hearsay.
Id. at 282. However, the court held that this finding did not dictate reversal because
there was “sufficient competent evidence to sustain the decision, notwithstanding the
exclusion of the transcript as substantive evidence.” Id.
70. Id. at 275.
71. Id. at 277-78.
72. Teacher Tenure Act, 1969 Mo. Laws 275 (codified at MO. REV. STAT. §
168.102 (2000)).
73. Lindbergh Sch. Dist. v. Syrewicz, 516 S.W.2d 507, 512 (Mo. App. E.D.
1974).
74. MO. REV. STAT. § 168.104(4). The five-year period is shortened by one year
if the teacher has two or more years of teaching experience in another school system.
Id. § 168.104(5).
File: NeuselPaginated.docx
2012]
Created on: 5/27/13 10:48 PM
Last Printed: 10/21/13 10:39 PM
TEACHER TENURE ACT
863
tract that continues from year to year.75 A teacher who is not tenured is given
a one-year contract that may be “non-renewed” at the end of the school year
upon timely notice to the teacher.76 However, before a school district may
terminate a tenured teacher, it must provide a number of procedural rights to
the teacher, including a hearing before the school board.77
Additionally, the Act limits the reasons for which a tenured teacher’s indefinite contract may be terminated to the following:
(1) physical or mental condition unfitting him to instruct or associate with children; (2) immoral conduct; (3) incompetency, inefficiency, or insubordination in line of duty; (4) willful or persistent
violation of, or failure to obey, the school laws of the state or the
published regulations of the board of education of the school district employing him (5) excessive or unreasonable absence from
performance of duties; or (6) conviction of a felony or a crime involving moral turpitude.78
B. Interpretation of the Phrase “Immoral Conduct” in Missouri
In Missouri, the scope of the phrase “immoral conduct” has been the
subject of frequent and impassioned controversy. In Thompson v. Southwest
School District, a federal district court case decided in 1980, a plaintiffteacher alleged that the language “immoral conduct” was impermissibly
vague and denied her due process of law.79 The court found that the Teacher
Tenure Act confers upon permanent teachers a protected property interest,
which cannot be deprived without adequate notice.80 The court agreed with
the plaintiff that, in the abstract, the phrase “immoral conduct” was constitutionally suspect under the strict standards of construction employed in criminal and First Amendment contexts.81 However, the court went on to say that
the phrase is “capable of being given a more precise judicial construction so
as to avoid the vagueness issue.”82 In the end, the court concluded that immoral conduct relates to “conduct rendering [a teacher] unfit to teach”83 and
laid out eight factors to aid in this determination:
(1) the age and maturity of the students of the teacher involved; (2)
the likelihood that the teacher’s conduct will have adversely af75.
76.
77.
78.
79.
80.
81.
82.
83.
Id. §§ 168.108.1, 168.101(3)-(4).
Id. § 168.126.
Id. § 168.118.
Id. § 168.114.1.
Thompson v. Sw. Sch. Dist., 483 F. Supp. 1170, 1178-80 (W.D. Mo. 1980).
Id. at 1179.
Id.
Id. at 1180.
Id. at 1181.
File: NeuselPaginated.docx
864
Created on: 5/27/13 10:48 PM
MISSOURI LAW REVIEW
Last Printed: 10/21/13 10:39 PM
[Vol. 77
fected students or other teachers; (3) the degree of the anticipated
adversity; (4) the proximity or remoteness in time of the conduct;
(5) extenuating or aggravating circumstances surrounding the conduct; (6) the likelihood that the conduct may be repeated; (7) the
motives underlying the conduct; (8) whether the conduct will have
a chilling effect on the rights of the teachers involved or of other
teachers.84
Four years later, the Supreme Court of Missouri was presented with a
state constitutional challenge in Ross v. Robb.85 In Ross, the plaintiff-teacher
stated that the phrase “immoral conduct” failed to provide “a standard against
which conduct [could] be judged and thus [failed] to give a person of ordinary intelligence a reasonable opportunity to know what acts are prohibited.”86 Although the Supreme Court of Missouri was not bound by the district court’s decision in Thompson, it nonetheless agreed with Thompson’s
analysis and denied plaintiff’s constitutional challenge.87 Thus, the “unfit to
teach” standard and the eight-factor test were adopted in Missouri.
A year later, in Kimble v. Worth County R-III Board of Education, the
Western District adhered to the decision in Ross, denying a teacher’s claim
that the school board’s decision to terminate her rested on an unconstitutionally vague statute.88 In Kimble, a teacher-librarian was terminated for immoral conduct after the school board found she had stolen a tea pot used in a
school play, twenty dollars in gate receipts collected at a school basketball
game, and a set of books belonging to the school district, which she originally
stated were never delivered by the vendor.89 Describing the teacher’s inappropriate conduct, the Kimble court stated:
The taking of property belonging to another without consent, notwithstanding its return when confronted with such wrongdoing,
breaches even the most relaxed standards of acceptable human behavior, particularly so with regard to those who occupy positions
which bring them in close, daily contact with young persons of an
impressionable age.90
Then in 1986, the Western District stated in another case that Ross did
not require a specific separate finding of “unfitness to teach,” but required
that there be some “nexus” between the immoral conduct shown in the evi-
84.
85.
86.
87.
88.
89.
90.
Id. at 1182.
662 S.W.2d 257, 257-58 (Mo. 1983) (en banc).
Id. at 259.
Id.
669 S.W.2d 949, 953 (Mo. App. W.D. 1984).
Id. at 952.
Id. at 953.
File: NeuselPaginated.docx
2012]
Created on: 5/27/13 10:48 PM
TEACHER TENURE ACT
Last Printed: 10/21/13 10:39 PM
865
dence and fitness to teach.91 Likewise, in Cochran v. Board of Education of
Mexico School District,92 the Eastern District adopted the “nexus” requirement.93 In Cochran, a vocational school instructor was terminated because he
violated federal regulations by falsely indicating in four reports that equipment was still owned by the school district and was on school property, when
in fact it had been sold.94 Additionally, the instructor filed an application that
contained false personal information, causing the district to overpay him.95
Although the phrase “immoral conduct” withstood the constitutional
challenges in Ross and Thompson, neither of those courts fully resolved the
more vexing issue of how “immoral conduct” is defined.96 In the 1994 decision Youngman v. Doerhoff,97 the Eastern District provided an in-depth analysis of how the phrase “immoral conduct” should be interpreted. In Youngman, a fourteen-year-old male student alleged that his male teacher had
hugged him, rubbed his back, and kissed him twice on the neck.98 The student was offended and interpreted the contact as a sexual advance.99 However, there were numerous special circumstances that indicated the incident
was not sexual in nature, and the matter was not viewed as sexual misconduct
at all.100 The school board fired the teacher for “immoral conduct.”101
91. Schmidt v. Bd. of Educ. Raytown Consol. Sch. Dist. No. 2, 712 S.W.2d 45,
48 (Mo. App. W.D. 1986) (noting that plaintiffs did not contest the board’s finding of
immoral conduct). The “nexus” requirement is the majority stance of most states
under statutes containing similar language. See infra Part III.C. In Lile v. Hancock
Place School District, the Eastern District held that the statute gives the school board
authority to terminate a teacher for conduct outside the school context if it can establish a sufficient nexus between such conduct and the board’s legitimate interest in
protecting the school community from harm. 701 S.W.2d 500, 506 (Mo. App. E.D.
1985). The court stated that the school board was not required to show actual harm to
the interests of the school community to permit termination; it was sufficient to establish that substantial harm was “likely to occur” if the individual remained as a teacher.
Id. (quoting Thompson v. Sw. Sch. Dist., 483 F. Supp. 1170, 1181 (W.D. Mo. 1980)).
92. 815 S.W.2d 55 (Mo. App. E.D. 1991).
93. Id. at 64.
94. Id. at 57-58. This behavior cost the school district thousands of dollars. Id.
at 58.
95. Id.
96. In 1992, the Missouri Court of Appeals for the Eastern District attempted to
fashion a definition in Gerig v. Board of Education of Central School District, holding that a teacher’s conduct was immoral because it was “more than an exercise of
bad judgment, it violated ‘even the most relaxed standards of acceptable human behavior.’” 841 S.W.2d 731, 735 (Mo. App. E.D. 1992) (quoting Kimble v. Worth
Cnty. R-III Bd. of Educ., 669 S.W.2d 949, 953 (Mo. App. W.D. 1984)).
97. 890 S.W.2d 330 (Mo. App. E.D. 1994).
98. Id. at 332-33.
99. Id. at 333.
100. Id. at 334. The student had behavioral problems and was seen “teary eyed”
by the teacher who offered a hug and encouragement in a brief encounter, which
File: NeuselPaginated.docx
866
Created on: 5/27/13 10:48 PM
MISSOURI LAW REVIEW
Last Printed: 10/21/13 10:39 PM
[Vol. 77
In deciding to reverse the board’s decision, the court in Youngman stated
that, at a minimum, the term “‘immoral conduct’ . . . contemplates conduct
which is sufficiently contrary to justice, honesty, modesty or good morals, or
involving baseness, vileness or depravity so as to support the inference that
the teacher consciously comprehended the wrongful nature of the conduct.”102
The court said:
[I]mmoral conduct is conduct which goes beyond a matter of
judgment such that the teacher may properly be presumed to have
prior notice of its wrongful character and thus may be properly
held responsible for his conscious disregard of established moral
standards. Immoral conduct is conduct which is always wrong.
Just as one can never be accidentally or unwittingly dishonest, immoral conduct requires at least an inference of conscious intent.
To hold otherwise would vitiate the legislature’s intent to provide
stability and certainty in matters of teacher discipline and seriously
undermine if not destroy the concept of prior notice that due process requires in teacher termination cases.103
Therefore, the court found that the school board’s determination that the
teacher engaged in “immoral conduct” was improper because it was solely
based on the student’s reactions to the teacher’s conduct.104 According to the
court, “teacher termination is justified as a means of enforcing existing policy
or established moral standards that, by their nature, do not require codification.”105
A year later, in Howard v. Missouri State Board of Education, the
Southern District decided a case in which a teacher challenged the State
Board of Education’s decision to revoke her license because it determined she
had engaged in “immoral conduct.”106 The trial court originally accepted the
teacher’s argument that she did not engage in “immorality” because “she was
acting under the influence of either a mental illness or medications associated
with that illness at the time the acts complained of occurred and lacked intent
to commit any immoral act.”107 On appeal, the teacher maintained her posiapparently included the touching and kissing mentioned. Id. at 333. The teacher was
known to be physically demonstrative, and there was evidence that the faculty had in
fact been encouraged to extend comforting gestures. Id. at 335. However, there had
never been any guidelines given as to what kind of conduct was acceptable. Id.
101. Id. at 331.
102. Id. at 341 (emphasis added).
103. Id. at 342 (emphasis added).
104. Id.
105. Id. at 343 (emphasis omitted).
106. 913 S.W.2d 887, 890 (Mo. App. S.D. 1995). In Howard, the teacher’s allegedly immoral conduct included numerous acts of sexual misconduct. Id. at 889.
107. Id. at 890 (emphasis added).
File: NeuselPaginated.docx
2012]
Created on: 5/27/13 10:48 PM
Last Printed: 10/21/13 10:39 PM
TEACHER TENURE ACT
867
tion that based upon Youngman, she could not be deprived of her teaching
certificate on the ground of immorality because there was not specific evidence of conscious intent to commit the acts alleged.108 Unconvinced, the
court distinguished Youngman based upon the fact that it was a teacher termination case, not a license revocation case.109 Moreover, the court stated that
Youngman was a case in which the teacher’s behavior was not “plainly” or
“patently immoral,” and therefore the court in Youngman had to look to other
rules to measure the teacher’s intent.110 In the end, the Howard court held
that, for purposes of the license revocation statute, there was “no necessity to
prove intent in order to revoke [the teacher’s] teaching licenses, there being
‘satisfactory proof of . . . immorality.’”111
However, one judge dissented and believed that that the trial judge correctly ruled.112 The dissenting judge approved of the logic and analysis of the
court in Youngman and thought that it should apply in this case as well.113 In
his words, “[n]either [a]ppellant has satisfactorily explained . . . how you can
be immoral without any intent to do so.”114
In 1996, the Eastern District once again applied the definition of “immoral conduct” promulgated in Youngman.115 In the case In re Thomas, a
teacher drove to her estranged husband’s house and shot a woman in the leg
with a revolver.116 The court agreed with the school board that the “intentional shooting of another without legal justification or excuse was sufficiently contrary to justice and good morals to meet the definition of immoral
conduct.”117
C. Defining “Immoral Conduct” in Other States
Relatively few jurisdictions around the country have statutes that define
immoral behavior.118 Alaska is one of the few jurisdictions that is somewhat
more explicit in defining immoral conduct as a basis for teacher termination.
Alaska’s statute defines “immoral conduct” as the “commission of an act that,
108. Id. at 891.
109. Id. at 892. Under Missouri law, the state board of education can refuse to
renew a teacher’s certificate or discipline the holder of a certificate when there is
evidence of “immorality” presented against the certificate holder. MO. REV. STAT. §
168.071(3) (2000).
110. Howard, 913 S.W.2d at 892.
111. Id. at 893.
112. Id. at 894 (Prewitt, J., dissenting).
113. Id.
114. Id.
115. In re Thomas, 926 S.W.2d 163 (Mo. App. E.D. 1996).
116. Id. at 164-65.
117. Id. at 165.
118. See, e.g., WYO. STAT. ANN. § 21-7-110(a) (West, Westlaw through 2012
budget season).
File: NeuselPaginated.docx
868
Created on: 5/27/13 10:48 PM
MISSOURI LAW REVIEW
Last Printed: 10/21/13 10:39 PM
[Vol. 77
under the laws of the state, constitutes a crime involving moral turpitude.”119
Likewise, Louisiana limits its definition of immorality to “conviction of a
felony offense affecting the public morals” as enumerated under Louisiana
law.120 Commonly, however, the state statutory provisions that govern
teacher character and morality are “broad and undefined.”121 Regardless,
very few have been held unconstitutional.122
Like Missouri’s law, most of these statutes stand up to constitutional
challenges because of the judicially imposed “nexus” requirement.123 Because teacher tenure laws provide teachers with a property interest in their
employment, “[t]eachers possess an important right under the Constitution –
the right to procedural due process under the law.”124 This right requires that
the state action have a rational basis for depriving a person of life, liberty, or
property.125 Thus, the basis for “the deprivation may not be so [insufficient]
that a [fact-finder] will characterize it as ‘arbitrary or capricious.’”126 The
nexus requirement “ensures that the teacher will only be dismissed for something truly related to [his or her job].”127
Like the decision in Youngman, there are court decisions from other
states that focus on the intent of the teacher.128 In Wright v. Superintendent
School Committee, the Maine Supreme Court overturned a school board’s
decision to terminate a teacher’s contract when the teacher brought a revolver
and ammunition to school.129 The Wright court noted, “[i]t was not until [the
teacher] hung [his] jacket in a small alcove in the classroom in which he
taught that he realized the presence of the gun and shells.”130 The court found
“that a single, isolated instance of ‘grave lack of judgment’ . . . does not involve . . . moral impropriety[.]”131
In a California state court case, San Francisco Unified School District v.
Weiland, the school board terminated a teacher who falsified class attendance
records by fraudulently signing students’ names to the roster so she could
119. ALASKA STAT. § 14.20.170(a)(2) (West, Westlaw through 2012 2nd Reg.
Sess.).
120. LA. REV. STAT. ANN. § 17:443(c) (West, Westlaw through 2011 First Extraordinary and Reg. Sess.).
121. Fleming, Cooley & McFadden-Wade, supra note 4, at 73.
122. Fulmer, supra note 3, at 273.
123. Id. at 283.
124. Id.
125. Id.
126. Id.
127. Id. at 284.
128. Amber Fischer,“Immoral Conduct”: A Fair Standard for Teachers?, 28 J.L.
& EDUC. 477, 480 (1999).
129. 331 A.2d 640, 643 (Me. 1975).
130. Id. at 642-43.
131. Id. at 647.
File: NeuselPaginated.docx
2012]
Created on: 5/27/13 10:48 PM
TEACHER TENURE ACT
Last Printed: 10/21/13 10:39 PM
869
keep her job.132 The court concluded that the teacher’s termination was valid
because “[h]er acts were deliberately designed to defraud the state and the
district.”133 Moreover, the court said immorality “includes . . . willful, flagrant, or shameless conduct showing moral indifference to the opinions of
respectable members of the community.”134
IV. INSTANT DECISION
The Court of Appeals for the Southern District of Missouri found that
Homa’s conduct constituted immoral conduct under Missouri Revised Statutes section 168.114.135 In reaching this conclusion, the court began its opinion by clarifying the meaning of the phrase “immoral conduct.”136 Citing
Ross, the court stated “‘immoral conduct’ means conduct which renders a
teacher unfit for the performance of her duties.”137 But “‘[t]hat the conduct
renders the teacher unfit to teach is a limitation, not a definition.”’138 The
court noted that “[i]mmoral conduct” could be described as “sufficiently contrary to justice, honesty, modesty, or good morals, or involving baseness,
vileness or depravity so as to support the inference that the teacher consciously comprehended the wrongful nature of the conduct.”139 Then, again
quoting the Eastern District’s opinion from Youngman, the court stated that
“one can never be accidentally or unwittingly dishonest” because “immoral
conduct requires at least an inference of conscious intent.”140 Finally, the
court stated that “if conduct is found to be immoral, it must then be determined if such conduct renders the teacher unfit to teach.”141
179 Cal. App. 2d 808, 809-10 (Cal. Ct. App. 1960).
Id. at 812.
Id. at 811 (quoting Orloff v. L.A. Turf Club, 227 P.2d 449 (Cal. 1951)).
Homa v. Carthage R-IX Sch. Dist., 345 S.W.3d 266, 276 (Mo. App. S.D.
2011), transfer denied.
136. Id. The court stated that the “six grounds upon which an indefinite contract
with a permanent teacher may be terminated” are “designed to serve and protect” the
community and “enable school districts to terminate teachers’ contracts for conduct
that endangers the welfare of students.” Id. (citing Hamm v. Poplar Bluff R-1 Sch.
Dist., 955 S.W.2d 27, 29 (Mo. App. S.D. 1997)). “The paramount interest is the welfare of the students, and the authority of the Board should not be confined to such an
extent that there may be no remedy for a situation having serious negative potential.”
Id. (citing Hamm, 955 S.W.2d at 29).
137. Id. (citing Ross v. Robb, 662 S.W.2d 257, 259 (Mo. 1983) (en banc)).
138. Id. (quoting In re Thomas, 926 S.W.2d 163, 165 (Mo. App. E.D. 1996)).
139. Id. (quoting Youngman v. Doerhoff, 890 S.W.2d 330, 341 (Mo. App. E.D.
1994)).
140. Id. (quoting Youngman, 890 S.W.2d at 342).
141. Id. at 277 (citing In re Thomas, 926 S.W.2d at 165).
132.
133.
134.
135.
File: NeuselPaginated.docx
870
Created on: 5/27/13 10:48 PM
MISSOURI LAW REVIEW
Last Printed: 10/21/13 10:39 PM
[Vol. 77
Next, the court discussed two analogous cases, Kimble v. Worth County
R-III Board of Education142 and Cochran v. Board of Education of Mexico
School District No. 59,143 stating that they were instructive in applying the
unique facts of the instant case to the law because they addressed “similarly
characterized conduct.”144 With these cases in mind, the court determined
that Homa’s conduct could be “similarly characterized as immoral” because
“it [went] beyond poor judgment and [fell] outside the scope of acceptable
behavior.”145 In particular, the court recognized that the immoral conduct of
Homa included her “authorization of Davenport to visit the jail for an improper purpose, the mishandling of school funds under the PAT program, and
the silence involved in covering up the true purpose of Davenport’s trip to the
jail.”146
Next, the court addressed Homa’s argument that she lacked the requisite
intent for her actions to constitute immoral conduct.147 The court determined
that Homa knew visiting an incarcerated immigrant facing deportation in
order to solicit the adoption of her child was unacceptable under the PAT
program because Homa concealed Davenport’s purpose for visiting the jail,
approved only half of Davenport’s mileage, failed to send developmental
material, failed to ask DESE for approval, failed to require a report of Davenport’s visit, and failed to inform the District of the subpoena served upon
Davenport.148
According to the court, Homa’s act of “ensuring there was no documentation of [Davenport’s] visit [was] continued deceit.”149 Despite Homa’s
characterization of these incidents as “mistakes,” the court found that Homa
knew what she was doing was wrong and that using District funds for such
purpose was also wrong.150 The court reiterated that “strict recordkeeping
and reimbursement requirements help . . . ensure [that] PAT educators are
complying” with the program guidelines and goals, and that Homa knew
these requirements.151 The court noted that Davenport’s “meeting with Bail
to pressure her into adoption did not fall under any of PAT’s ‘Description of
Services.’”152 Thus, Homa’s “actions reflect[ed] deceit and dishonesty.”153
The court observed that Homa not only covered up the incident by maintaining silence, but that she also mishandled District funds when she author142.
143.
144.
145.
146.
147.
148.
149.
150.
151.
152.
153.
See 669 S.W.2d 949 (Mo. App. W.D. 1984).
See 815 S.W.2d 55 (Mo. App. E.D. 1991).
Homa, 345 S.W.3d at 277.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
File: NeuselPaginated.docx
2012]
Created on: 5/27/13 10:48 PM
TEACHER TENURE ACT
Last Printed: 10/21/13 10:39 PM
871
ized an activity that did not comply with DESE/ESDA requirements.154 Furthermore, the court recognized that Homa admitted she was aware of the requirements for DESE reimbursement, yet she did not comply to ensure the
District was reimbursed.155 In the end, the court was not concerned with the
amount of money improperly spent on the visit and only took issue with
Homa’s use of taxpayer dollars for an improper purpose.156
The court declined to restrict the school board’s authority to act in a
situation such as this, which “[was] completely contrary to the spirit and purpose of PAT.”157 The court recognized that “PAT is a state-funded program
designed to help increase parent confidence and improve parenting skills.”158
The court emphasized that “the [school b]oard’s decision to terminate
[Homa’s] employment for her immoral conduct must be considered in context
of all the extenuating circumstances,” i.e., a “vulnerable parent, misuse of
funds, cover-up, failure to take responsibility, and the potential for disastrous
consequences.”159 Once again the court mentioned that Homa knew Bail was
possibly in a vulnerable state, noting that Bail was “incarcerated, did not
speak English, was undocumented, and facing deportation.”160 The court
mentioned in a footnote that a supervisor’s awareness of a single incident in
which a PAT educator discusses adoption with a PAT client will not always
constitute immoral conduct.161 However, the presence of said extenuating
circumstances, which in and of themselves demonstrated immoral conduct,
made Homa’s actions and inactions rise to the level required of immoral conduct.162
The court then addressed Homa’s contention that there was no evidence
that her conduct rendered her unfit to teach, even if it was immoral.163 Although a separate finding of “unfitness to teach” was not required, the court
stated that there must be a nexus between the immoral conduct shown in the
evidence and fitness to teach.164 The court then considered the eight factors
from Thompson that aid in this determination165 and found the facts supported
the school board’s determination that Homa was unfit to teach.166 The court
agreed with the school board that Homa would likely repeat this conduct in
154.
155.
156.
157.
158.
159.
160.
161.
162.
163.
164.
Id. at 278.
Id.
Id.
Id.
Id.
Id.
Id.
Id. at 278 n.10.
Id. at 278.
Id.
Id. (quoting Cochran v. Bd. of Educ., 815 S.W.2d 55, 64 (Mo. App. E.D.
1991)).
165. Id.; see also supra note 84 and accompanying text.
166. Homa, 345 S.W.3d at 278.
File: NeuselPaginated.docx
872
Created on: 5/27/13 10:48 PM
MISSOURI LAW REVIEW
Last Printed: 10/21/13 10:39 PM
[Vol. 77
the future.167 The school board believed this because of “Homa’s casual [and
unprofessional] attitude, which was supported by [her] testimony that it was
okay for PAT educators to talk to clients about adoption, that [it] was not a
mistake for Davenport to go to the jail, and the fact that [Homa] concealed
her actions and Davenport’s actions by failing to keep a proper record.”168
Furthermore, Homa’s careless attitude indicated to the court that she might
not act differently in the future when presented with other vulnerable PAT
clients who are in need of protection from “individuals interested in promoting their own agenda while acting under the authority of PAT educators.”169
The court reasoned that Homa’s role as the director of PAT would continue to
put her in situations in which she would deal with vulnerable parents and
children, and that the potential for negative consequences was high.170 Thus,
the school board properly applied the instant “facts to the law in finding
[Homa’s] conduct also rendered her unfit to teach.”171
V. COMMENT
In our society, reasonable employees would not be shocked if their boss
fired them for failing to perform their duties at work.172 A computer programmer who missed a deadline or a bank teller who gave a customer an
extra $100 would expect to be in jeopardy of losing his or her job. Most employees know that fulfilling their specific job requirements is imperative to
their future employment. In contrast, Missouri’s educators have relatively
little guidance on what type of behavior their local school boards will consider “immoral.” On its face, Missouri Revised Statutes section 168.114 does
not serve to inform teachers of conduct that may lead to their termination173
because the meaning of “immoral” depends on the characteristics and beliefs
of the individual school board members.174 As such, there is an inherent danger of arbitrary and discriminatory enforcement.175 Considering this risk, it is
not altogether surprising that Missouri’s appellate courts have generally failed
to settle upon a definition of “immoral conduct.” That said, the Missouri
Court of Appeals, Southern District decision in Homa reduced this danger.
Id. at 279.
Id. at 278-79.
Id. at 279.
Id.
Id.
Fulmer, supra note 3, at 277.
See Fischer, supra note 128, at 479.
Fleming, Cooley & McFadden-Wade, supra note 4, at 93 (quoting Burton v.
Cascade Sch. Dist. Union High Sch. No. 5, 353 F. Supp. 254, 254-55 (D. Or. 1973)
(interpreting Oregon’s “immorality” clause)). A potential for arbitrary school board
decisions has always been a risk with state statutes governing the morals of teachers.
Id.
175. Id.
167.
168.
169.
170.
171.
172.
173.
174.
File: NeuselPaginated.docx
2012]
Created on: 5/27/13 10:48 PM
TEACHER TENURE ACT
Last Printed: 10/21/13 10:39 PM
873
By adopting the Eastern District’s definition of “immoral conduct” from
Youngman, the Southern District added more stability to the phrase and made
it easier for teachers, school boards, and courts to interpret what type of behavior is “immoral” under the statute.
Prior to Homa, most cases of “immoral conduct” involved instances of
sexual misconduct176 or theft.177 However, in Homa, the appellate court applied the phrase “immoral conduct” to a very distinct set of circumstances.178
Reasonable people could disagree about whether Homa’s acts were so egregious that they would be considered “immoral.” Considering that Davenport
said the relationship between Bail and her child was one of the worst cases of
neglect she had ever seen, it is fair to assume that she and Homa had the
child’s best interests in mind when the adoption discussion took place.179
Additionally, some may question whether using taxpayer funds to facilitate
such a discussion is so completely inappropriate that it rises to the level of
“immoral.” Homa did not embezzle the money and use it for her own personal benefit – she was trying to help a child. In fact, the court even stated in
a footnote that a PAT educator discussing adoption with a PAT client may
not always rise to the level of immoral conduct.180 Thus, the crux of the
“immoral conduct” was not simply the PAT educator’s act of discussing
adoption with a parent, but rather discussing adoption given the extenuating
circumstances: the vulnerability of Bail, the misuse of funds, Homa’s dishonesty in concealing the visit, and her failure to accept responsibility.181 But on
what basis does the court draw this distinction? What is the standard, and
was it correctly applied?
Using the Kimble and Cochran cases as its sources of comparison, the
Southern District stated that Homa’s actions were similarly “immoral” because they went “beyond poor judgment and [fell] outside the scope of acceptable behavior.”182 However, the teachers in those two cases arguably
displayed more morally culpable behavior than Homa.183 Regardless, in
Howard, the Southern District previously held that a teacher’s behavior was
“patently immoral” because it reflected poor judgment and was outside the
scope of acceptable behavior.184 Thus, under Howard, it would appear as
176. See, e.g., Youngman v. Doerhoff, 890 S.W.2d 330 (Mo. App. E.D. 1994);
Lang v. Lee, 639 S.W.2d 111 (Mo. App. W.D. 1982).
177. See, e.g., Kimble v. Worth Cnty. R-III Bd. of Educ., 669 S.W.2d 949 (Mo.
App. W.D. 1984).
178. Homa v. Carthage R-IX Sch. Dist., 345 S.W.3d 266, 279 (Mo. App. S.D.
2011), transfer denied.
179. Id. at 273.
180. Id. at 278 n.10.
181. Id. at 278.
182. Id. at 277.
183. See supra notes 88-95 and accompanying text.
184. Howard v. Mo. State Bd. of Educ., 913 S.W.2d 887, 893 (Mo. App. S.D.
1995).
File: NeuselPaginated.docx
874
Created on: 5/27/13 10:48 PM
MISSOURI LAW REVIEW
Last Printed: 10/21/13 10:39 PM
[Vol. 77
though the court needed no other justification for upholding the District’s
decision besides a nexus between Homa’s immoral conduct and her fitness to
teach. Nevertheless, the court went on to address Homa’s claim that she did
not have the requisite intent to constitute immoral conduct.185
Although the phrase “immoral conduct” withstood state and federal constitutional challenges in Ross and Thompson, no Missouri case prior to
Youngman explicitly required teachers to have intentionally engaged in immoral conduct or to have possessed knowledge that their actions were wrong.
In Youngman, the Eastern District stated that “immoral conduct requires at
least an inference of conscious intent.”186 The court stated that the element of
intent is necessary to “provide stability and certainty in matters of teacher
discipline” and to not require it would “undermine if not destroy the concept
of prior notice that due process requires.”187 Therefore, when interpreting
“immoral conduct” in this manner, the “consciousness of wrongdoing serves
as notice.”188
In Homa, the Southern District found that Homa’s actions189 revealed
she “willfully” engaged in conduct she “knew to be unacceptable,” and, therefore, she “satisfie[d] the intentional element of immoral conduct.”190 Thus,
the court adopted the rule from Youngman191 and included a mens rea192
amongst the elements required to fire a tenured teacher for “immoral conduct.” In doing so, the court abandoned its reasoning in Howard and concluded that, although Homa’s behavior was “outside the scope of acceptable
behavior,” the facts must corroborate a specific culpable mental state.193
Therefore, in both the Southern and Eastern Districts of Missouri, in order for
185. Homa, 345 S.W.3d at 277.
186. Youngman v. Doerhoff, 890 S.W.2d 330, 342 (Mo. App. E.D. 1994) (em-
phasis added).
187. Id.
188. Id. at 341.
189. Homa’s actions in “concealing Davenport’s purpose for the visiting the jail –
only approving half the mileage, not sending developmental material, not asking
DESE for approval, not requiring a report of Davenport’s visit, and not informing
District administration of the subpoena served upon Davenport – demonstrate[ed] she
knew the visit was unacceptable.” Homa, 345 S.W.3d at 277.
190. Id. (emphasis added).
191. See Youngman, 890 S.W.2d at 342.
192. A culpable mental state. For example, under Missouri criminal law
A person acts knowingly, or with knowledge,
(1) With respect to his conduct or to attendant circumstances when he is
aware of the nature of his conduct or that those circumstances exist; or
(2) With respect to a result of his conduct when he is aware that his conduct is practically certain to cause that result.
MO. REV. STAT. § 562.016 (2000).
193. See Homa, 345 S.W.3d at 277. Of course, Howard is distinguishable from
the instant decision because it involved a license revocation under a different statute.
Howard v. Mo. State Bd. of Educ., 913 S.W.2d 887, 888 (Mo. App. S.D. 1995).
File: NeuselPaginated.docx
2012]
Created on: 5/27/13 10:48 PM
TEACHER TENURE ACT
Last Printed: 10/21/13 10:39 PM
875
a school board to terminate a tenured teacher for “immoral conduct,” the
board must find that the teacher “intentionally” engaged in conduct he or she
“knew” was inappropriate. In other words, the teacher must “knowingly”194
engage in the inappropriate conduct. But does this mean a teacher may be
terminated for knowingly engaging in any conduct that is inappropriate?
Once again, the major problem with statutes that allow for termination
based upon immorality is that they do not apprise teachers of the conduct that
may lead to their termination. One commentator has argued that these statutes are “simply outdated” and “pose significant difficulties when applied to
today’s more complex world.”195 However, after applying the “knowledge”
standard to the facts of Homa, it is not surprising that the court reached the
result it did.
Homa’s decision to allow Davenport to visit Bail while in jail to discuss
the adoption of Bail’s son was, if not immoral, definitely a poor choice. Regardless, it was her deceitfulness that appears to have elevated her behavior to
“immoral.” According to the court, not only did her actions and testimony
confirm that she believed the adoption conversation was wrong to begin with,
they revealed untrustworthiness and a failure to take responsibility.196 Unlike
the teacher in Youngman, who had no prior notice that his conduct was inappropriate,197 Homa’s actions reflected genuine “dishonesty.”198 Does this
mean a teacher may be terminated merely for being dishonest? No, probably
not, but Homa did not simply lie about some innocuous act. She engaged in
conduct that the school board thought was inappropriate (visiting the jail to
solicit the adoption of a vulnerable client’s child); she acknowledged through
her own actions that she also believed the conduct was wrong (by not asking
permission from DESE before the visit or requiring a report of Davenport’s
visit after she returned); and, perhaps most importantly, she tried to actively
conceal the true nature of her conduct (by changing her story). Having fully
established that she thought her actions were unacceptable under the PAT
program, as well as trying to hide them from her superiors, it would be irrational for Homa to then say that she was not given notice of what type of
behavior would subject her to termination.199
Missouri is not the only state in which knowledge of one’s wrongful
conduct is relevant. For instance, the Maine case, Wright v. Superintendent
School Committee, and the California case, San Francisco Unified School
District v. Weiland, both support the proposition that courts are more likely to
See supra note 192 and accompanying text.
Fulmer, supra note 3, at 289.
Homa, 345 S.W.3d at 278.
Youngman v. Doerhoff, 890 S.W.3d 330, 342 (Mo. App. E.D. 1994).
Homa, 345 S.W.3d at 277.
Hypothetically speaking, the court probably would not have found Homa’s
conduct to be “immoral” if she had not actively sought to hide it from her superiors.
194.
195.
196.
197.
198.
199.
File: NeuselPaginated.docx
876
Created on: 5/27/13 10:48 PM
MISSOURI LAW REVIEW
Last Printed: 10/21/13 10:39 PM
[Vol. 77
uphold the termination where the teacher’s conduct was intentional.200 Like
the teacher in Wright, who did not intend on bringing a gun to school, the
teacher in Youngman did not intend on making a sexual advance on the student.201 Thus, both terminations were overturned on appeal. On the other
hand, the respective terminations of the teachers in Weiland and Homa were
both upheld after the respective school boards determined the teachers had
willfully engaged in inappropriate actions.202
One commentator has suggested that state legislatures should modify
their statutes to include a culpable mental state, so teachers will be more
likely to know what behavior is expected of them.203 This suggestion has
some merit because it is possible that by incorporating a more definite standard, teachers will be less likely to engage in behavior that will result in termination.204 However, in most cases of “immoral conduct,” it is not difficult
for the school board or the court to find intent. For instance, a court could
easily determine intent in a case factually similar to In re Thomas, where the
teacher was terminated after she fired a gun at another person without legal
justification or excuse.205
The Southern District correctly decided to include intent as an element
in determining whether a teacher acted immorally. Furthermore, the court
accurately applied this standard in Homa. Practically speaking, it is only in
the borderline decisions (those in which reasonable people could disagree,
and those that should be taken to trial) where such a standard is truly necessary. In general, teachers, like most employees, know what type of behavior
is considered inappropriate and will avoid that type of behavior. If teachers
really do not “know” that what they did was wrong, then the courts in the
Southern and Eastern Districts will probably not find that they engaged in
“immoral conduct.”
In the future, changing the statute to include a culpable mental state like
“knowledge” would likely have little practical effect. If the “common denominator” in these cases is evidence of the teacher’s conscious intent, then
teachers already inherently know the standard.206 The only problem that remains is that neither the Western District, nor the Supreme Court of Missouri,
has adopted this standard. Were they to do so, school districts and lower
courts throughout the state would be less likely to make arbitrary decisions
based solely on community standards.
200. See Fischer, supra note 128, at 480-81; supra notes 129-34 and accompany-
ing text.
201.
202.
203.
204.
205.
206.
See supra notes 97-105 and accompanying text.
See supra notes 132-34 and accompanying text.
Fisher, supra note 128, at 480-81.
See id. at 482.
See supra notes 116-17 and accompanying text.
See Youngman v. Doerhoff, 890 S.W.2d 330, 342 (Mo. App. E.D. 1994).
File: NeuselPaginated.docx
2012]
Created on: 5/27/13 10:48 PM
TEACHER TENURE ACT
Last Printed: 10/21/13 10:39 PM
877
VI. CONCLUSION
In Missouri, the three appellate courts have thus far failed to reach a
consensus as to how to define “immoral conduct.” Moreover, the Supreme
Court of Missouri has not clarified what the phrase means. Consequently,
school boards charged with enforcement of the Missouri Tenure Teacher Act
are the sole “arbiters of morality for the entire community.”207
In Homa v. Carthage School District, the Missouri Court of Appeals for
the Southern District adopted a rule from the Eastern District, which requires
school districts to find that teachers terminated for engaging in “immoral
conduct” have at least “an inference of conscious intent.”208 By adopting this
rule, the Southern District has provided teachers, administrators, school
boards, and its circuit courts with additional guidance as to what type of behavior is considered “immoral.”209 Although “immoral conduct” is readily
identifiable in many cases of teacher misconduct, situations may arise in
which it is difficult for courts to determine whether or not the teacher’s behavior was properly deemed immoral by his or her local school board. Now,
teachers like Homa cannot say that they had no notice of the type of behavior
that would subject them to termination. The rule provides some stability to
the decisions in those districts that apply it, benefiting both those who enforce
the law and those who must abide by the law. In the future, the Supreme
Court of Missouri and the Western District should also consider adopting this
standard. If they do, teachers, school boards, attorneys, and courts across the
state would benefit from the lower risk of arbitrary termination decisions.
207. Fulmer, supra note 3, at 275.
208. Homa v. Carthage R-IX Sch. Dist., 345 S.W.3d 266, 276 (Mo. App. S.D.
2011), transfer denied.
209. See Fischer, supra note 128, at 479.